The defendant was indicted, tried and convicted of the offense of unlawfully receiving, harboring and concealing an escaped convict. The appeal is from the judgment and sentence, including the overruling of a motion to quash the indictment and the motion for new trial, as amended. The substance of the alleged crime as disclosed by the evidence was that the accused assisted in the escape and then harbored the escaped State prisoner. This was shown by facts and circumstances amounting to an alleged conspiracy by the accused to assist the prisoner to escape, after which he was allegedly harbored by the accused. The testimony, in the main, discloses that the accused and his wife, both using an assumed name, together with another man and a little girl, visited the prisoner at the Reidsville Penitentiary shortly before he was transferred to the Talmadge Memorial Hos *143 pital in Augusta, from which he escaped. Another prisoner testified that the (escaped) prisoner on the night before he escaped gave him the Atlanta telephone number of the accused and wanted him to call the accused and tell him he would be in Augusta, that a guard was supposed to call but he wanted to be sure. This prisoner also testified that a custodial officer named O’Neil told the (escaped) prisoner in their presence shortly before leaving for Augusta that he had got a call through to Raymond and “he is going to be at the hospital to pick you up.” An Atlanta telephone official testified that there was a long distance call from Collins, Ga. to this number on the day before the escape. The Atlanta number was listed in the name of J. R. Walden. A white Ford car with an Atlanta license plate was seen following the car in which a guard and two prisoners being transferred from Reidsville were riding; a white car was also seen in the vicinity of the hospital thereafter, and also a light or off-white car was seen at or near the mother’s home in Atlanta during the time the escapee was supposedly there, and the accused and another man and a little girl were seen riding in the car. Another witness testified that during the period the prisoner was allegedly harbored in the home of the mother of the accused she heard voices through the walls in the mother’s apartment. The voices were, male voices talking to a child, and one of the voices sounded like that of the accused, but she would not testify that it was his voice. A police officer testified the escapee was found in the apartment of the defendant’s mother. He further testified that an informant told him the accused took the escaped convict from the Talmadge Memorial Hospital to his mother’s home, and, based on the information of the informant, the police officers obtained a search warrant and recaptured the escaped convict.
The appeal is from the overruling of motions to quash, for new trial, as amended, and in arrest of judgment. Error is enumerated on the denial of the motion for new trial as amended, a charge on the law of conspiracy, and on the admission of a number of documents, being copies of indictments. Held:
1. A conspiracy may be shown by circumstantial evidence. It is not necessary that the conspirators ever had a meeting, or a formal or other agreement to accompish the purpose of
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their joint efforts and it may be inferred from the acts, declarations and conduct of the co-conspirators, together with other circumstances in the case. “To show conspiracy it is not necessary to prove that the parties met together or entered into any specific or formal agreement, or that by words or writing they formulated their unlawful objects. Proof that the two or more persons, either positively or tacitly, come to an understanding that they will accomplish an unlawful design, or a lawful design unlawfully, is sufficient.”
Woodruff v. Hughes,
2. “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence.” Code § 38-302. During the legal investigation by police officers, based upon information received from an informant, a search warrant was taken out for the apartment of the mother of the accused, and as a result, the escaped convict was found. A detective testified that an informant had told him that the accused took the escaped convict from the Talmadge Memorial Hospital to his mother’s home. The information received from the informant is only allowed to be used in evidence to explain the conduct of the police officers in obtaining the search warrant of the mother’s premises, which is admitted in evidence not as hearsay, but as original evidence as to why he obtained the search warrant. However, it is noted that the accused failed to object to this evidence as hearsay with no probative value to show the accused guilty of the crime but merely objected that the information given the police by the informer would be inadmissible for obtaining the warrant. Counsel should have objected to the allowance of this testimony as pure hearsay with no probative value when the question was asked: “Did the informer tell you who took him from Augusta. . .?” and “Whom did he tell you?” Since the accused failed to properly object to the allowance in evidence of this testimony the special ground of the amended motion for new trial complaining thereof is not meritorious.
3. When the record of the court in which a case is being tried is material evidence in a case, it may be proven by the production of the record itself, and a certified copy is not necessary.
Sheppard v. State,
4. The conviction here was based largely upon circumstantial evidence. In order for a conviction based upon circumstantial evidence alone to be upheld the proved facts must exclude every other reasonable hypothesis save that of the guilt of the accused and be consistent with the hypothesis of guilt.
Code
§ 38-109;
Worley v. State,
5. Having considered every enumeration of error argued by counsel and finding no harmful errors, the judgment is
Affirmed.